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2009 DIGILAW 465 (ALL)

NEW INDIA ASSURANCE CO. LTD. v. SANTOSH AGARWAL

2009-02-09

DEVI PRASAD SINGH, V.D.CHATURVEDI

body2009
JUDGMENT : DEVI PRASAD SINGH, V.D. CHATURVEDI, JJ. 2. In brief, on 23.5.2001 at about 8.30 p.m., deceased Laxmi Narain Agarwal was going towards his house on a bike along with his brother and when he reached in front of Bara Gaon Police Chowki, Police Station Kotwali Sadar, District Gonda, a truck No. UAO 9548 driven rashly and negligently hit the motor cycle resulting serious injuries to Laxmi Narain Agarwal who succumbed to his injuries before arriving to the hospital. At the time of death, Laxmi Narain Agarwal was aged about 40 years. Deceased Laxmi Narain Agarwal was survived by his wife Santosh Kumar, son Mudit Agarwal (aged about 19 years), daughter Manali Agarwal (aged about 16 years) and Shubha Agarwal (aged about 14 years). Laxmi Narain Agarwal (deceased) was engaged in the business of aarhtia of foodgrains and his monthly income was Rs. 8,500. F.I.R. was lodged at the Police Station Kotwali Sadar, District Gonda at Case Crime No. 237 of 2001, under Sections 279, 304A and 427, Indian Penal Code. The truck was owned and possessed by Vijay Kumar and on the date of incident, it was insured with the Appellant. 3. While filing written statements, the Appellant has denied the involvement of the truck in accident and disowned its liability to pay the compensation. It was also alleged that the truck driver was not having licence. 4. Before the learned Tribunal, Santosh Agarwal has been examined as PW 1 and Jagdish Prasad Agarwal as PW 2. As documentary evidence, F.I.R. as Exh. C6 and death certificate, post-mortem report, driving licence and income tax return for the assessment years 2000-01 and 2001-02 were filed as Exhs. C2 to C8 before the Tribunal. 5. The Appellant insurance company itself has filed list Exh. C36 and true copy of insurance policy as Exh. C37 showing that the truck No. UAO 9548 owned by Vijay Kumar was insured by New India Assurance Co. Ltd. and the insurance was valid from 2.8.2000 to 1.8.2001. The accident took place on 23.5.2001. Accordingly, the Tribunal has recorded a finding that on the date of accident, the vehicle in question was duly insured with the Appellant. 6. On behalf of the claimants, it was pleaded that the driver of the truck Was having a valid licence at the time of accident. The accident took place on 23.5.2001. Accordingly, the Tribunal has recorded a finding that on the date of accident, the vehicle in question was duly insured with the Appellant. 6. On behalf of the claimants, it was pleaded that the driver of the truck Was having a valid licence at the time of accident. No evidence was led by the Appellant to establish that the driver was not having driving licence at the time of accident The Claims Tribunal has relied upon a decision reported in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, (1985) 2 SCC 574 and held that in view of the law settled by the Hon'ble Supreme Court onus to prove the violation of terms and conditions given in insurance policy with regard to driving licence lies upon the shoulders of the insurance company. In absence of any material, the Tribunal recorded a finding that the driver was having the driving licence at the time of accident. 7. No other ground has been pressed by the Appellant. 8. So far as the accident is concerned, from the statement of Jagdish Prasad Agarwal who was an eyewitness, it is borne out that the truck had given a hit to bike from front side in spite of the fact that the deceased was riding the motor cycle on left side of the road. The truck driver was caught hold by the public at the spot and brought to the police station concerned where F.I.R. was lodged. Before arriving at the hospital, the deceased Laxmi Narain Agarwal succumbed to his injuries. Map of the spot also indicates that the driver was driving the truck on wrong side. The finding of fact recorded by the Tribunal is based on the evidence on record and it does not suffer from any illegality. 9. Although the claimant alleged that the income of the deceased was Rs. 8,500 per month but they failed to prove it by cogent evidence. However, the Tribunal has relied upon 'Saral Form' income tax return for the years 2000-01 and 2001-02 which infers that deceased had income of Rs. 77,190 in 2000-01. The Tribunal has used multiplier 10 to assess the compensation which comes to Rs. 7,70,000. 10. 8,500 per month but they failed to prove it by cogent evidence. However, the Tribunal has relied upon 'Saral Form' income tax return for the years 2000-01 and 2001-02 which infers that deceased had income of Rs. 77,190 in 2000-01. The Tribunal has used multiplier 10 to assess the compensation which comes to Rs. 7,70,000. 10. The Appellant's counsel argued that the Tribunal should not have applied multiplier of 10 without deducting one-third income of the deceased while computing the compensation and it has considered the entire amount of Rs. 77,000 on the basis of income tax return submitted by the deceased for the year 2000-01. 11. In case 1/3rd amount is deducted then it will come to Rs. 51,460. In lump sum, the income of the deceased may be assessed as Rs. 51,000. 12. Keeping in view the age of the deceased, multiplier of 15 may be applied to award the compensation to the claimant. As such, by applying multiplier of 15, total compensation shall come to Rs. 51,000 x 15 = Rs. 7,65,000. The Respondents shall also be entitled for the funeral expenses of Rs. 2,000, loss of consortium Rs. 5,000 and loss to estate Rs. 2,500 as provided in Second Schedule to the Motor Vehicles Act. Thus, the total compensation conies to Rs. 7,74,500. 13. Accordingly, we hold that claimants are entitled to compensation to the tune of Rs. 7,74,500. The impugned judgment and award is modified to that extent accordingly. The compensation shall be paid to the dependant of the deceased in the ratio provided in the impugned award dated 6.6.2003 passed by the Tribunal. The appeal is decided accordingly. No order as to costs.